In our recent alert, we discussed the Zika virus generally and how the public health risk to most U.S. employers and their employees appears to be limited. The focus of concern is recent reports of a suspected link to Guillain-Barré syndrome and microcephaly, a neurological disorder that causes babies to be born with abnormally small heads, resulting in severe developmental issues and, in some cases, death. The CDC issued a statement that "[t]he full spectrum of outcomes that might be associated with infection during pregnancy" and the factors that might increase risk "are not yet fully understood."
Employers and their pregnant employees should be concerned about travel to affected countries, particularly Martinique, Brazil, Colombia, El Salvador, Venezuela, and Honduras. The CDC's travel guidelines recommend that pregnant women postpone traveling to regions where transmission of the Zika virus is common.
Given these concerns, what should prudent employers do to assist their female employees and to protect the organization's interests?
At a minimum, employers should advise female employees of the CDC's recommendation. This would enable pregnant employees, and other women who may become pregnant while traveling, to make an informed decision about whether to travel now to the affected areas.
If an employee is reluctant to abide by the CDC's recommendation, an employer should explore possible reasonable accommodations with that employee: Can the trip be postponed? (This may be difficult, because there is no reliable deadline for the public health crisis.) Can it be relocated? Is it feasible for the employee to participate remotely? Does the employee wish to designate a substitute?
If there is no reasonable accommodation that is mutually agreeable, other questions arise:
- What if your pregnant employee wishes to travel to an affected country now, despite the CDC's recommendation?
Well-intentioned employers should be careful. Ultimately, the pregnant employee decides what pregnancy-related risks to assume or avoid, under the Supreme Court's unanimous ruling in the 1991 case United Auto Workers v. Johnson Controls. Employers who start reassigning job tasks based on pregnancy (or the possibility of becoming pregnant) risk claims of discrimination under the Pregnancy Discrimination Act that amended Title VII of the Civil Rights Act of 1964, and comparable state laws.
- Should your organization have pregnant employees who wish to travel to affected countries "sign something" to relieve the organization of possible legal liability to the woman or her baby?
Employers may consider asking such employees to sign a form in which they acknowledge that they are assuming the pregnancy-related risks associated with such travel. Before you do, consider: Do you ask all employees to sign such forms before undertaking job assignments that entail an element of public health risk? Asking only pregnant employees, or only female employees of child-bearing age, may be problematic.
- Should such a form include a waiver of the employee's right to sue you if they or their babies suffer Zika-related harm?
While such a waiver might be enforceable against the employee, it is unclear whether such a waiver would be effective against a claim on behalf of the baby.
- Does workers' compensation cover potential Zika-related harm to the employee or her baby caused by work-related travel?
The Supreme Court specifically declined to answer this question in the Johnson Controls case, and it remains unsettled whether workers' compensation laws would cover harm to the baby caused by the mother's work-related travel. In other words, workers' compensation laws may not preempt a lawsuit on behalf of the baby.
- Is there insurance for claims by a pregnant employee or her baby?
Such claims may be covered by what is called "employers' liability" insurance, which is separate from workers' compensation insurance. This coverage is afforded under Part Two of the standard workers' compensation policy. Employers' liability insurance may cover claims by a pregnant employee who for some reason is not covered by workers' compensation. It may also provide coverage for bodily injury claims by family members who are injured as a consequence of injury to the employee.
- May a non-symptomatic pregnant employee refuse to come to work?
Some pregnant employees may be afraid to come to work for fear of contracting the virus. Employers should inform their employees that the virus is predominantly spread through mosquito bites, not through air, water or casual human contact with other workers in the office. Even if a pregnant employee works closely with a co-worker infected with the Zika virus, it appears that there is no risk of contracting the virus at work short of sexual contact with an infected employee.
If an employee still refuses to come to work, the employer should consult legal counsel. Although a healthy pregnant employee ought not to refuse to report to work for fear of contracting the Zika virus, the employer might want to consider a reasonable accommodation, such as telecommuting, if the employer does so for otherwise similarly situated non-pregnant employees.
In the end, decisions that implicate the health of employees and their babies are personal and must be addressed on a case-by-case basis. Employers can help their affected employees, and ultimately their organizations, by providing the best available public health information to enable employees to make well-informed judgments.